[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Rules and Regulations]
[Pages 28114-28121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13205]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 970703165-9117-03; I.D. 062397A]
RIN 0648-AK00


Taking and Importing Marine Mammals; Taking of Marine Mammals 
Incidental to Power Plant Operations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from North Atlantic Energy Service 
Corporation (North Atlantic), issues regulations to govern the 
unintentional take of small numbers of seals incidental to routine 
operations of the Seabrook Station nuclear power plant, Seabrook, NH 
(Seabrook Station). Issuance of regulations governing unintentional 
incidental takes in connection with particular activities is required 
by the Marine Mammal Protection Act (MMPA) when the Secretary of 
Commerce (Secretary), after notice and opportunity for comment, finds, 
as here, that such takes will have a negligible impact on the species 
and stocks of marine mammals and will not have an unmitigable adverse 
impact on the availability of them for subsistence uses. This 
rulemaking does not authorize this activity; such authorization is 
under the jurisdiction of the Nuclear Regulatory Commission and is not 
within the jurisdiction of the Secretary. Rather, these regulations 
authorize the unintentional incidental take of marine mammals in 
connection with such activities and prescribe methods of taking and 
other means of affecting the least practicable adverse impact on the 
species, and its habitat, and on the availability of the species for 
subsistence uses.

DATES: Effective from July 1, 1999, through June 30, 2004.

ADDRESSES: A copy of the application, Environmental Assessment (EA) and 
other available documents may be obtained by writing to Donna Wieting, 
Acting Chief, Marine Mammal Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring MD 20910-3226, or by 
telephoning the contacts listed below (see FOR FURTHER INFORMATION 
CONTACT: NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301) 
713-2055, or Scott Sandorf, Northeast Regional Office, NMFS, (978) 281-
9388.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
NMFS to allow, upon request, the incidental, but not intentional, 
taking of marine mammals by U.S. citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and regulations 
issued.
    Permission may be granted for periods of 5 years or less if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s) of marine mammals, will not have an unmitigable adverse impact 
on the availability of these species for subsistence uses, and if 
regulations are prescribed setting forth the permissible method of 
taking and the requirements pertaining to the monitoring and reporting 
of such taking.

Summary of Request

    On June 16, 1997, NMFS received an application for an incidental, 
small take exemption under section 101(a)(5)(A) of the MMPA from North 
Atlantic to take marine mammals incidental to routine operations of the 
Seabrook Station. Seabrook Station is a single unit, 1,150 megawatt 
nuclear power generating facility located in Seabrook, NH. Cooling 
water for plant operations is supplied by three intake structures 
approximately 1 mile (1.6 km) offshore in about 60 feet (18.3 m) of 
water. During normal power operations, about 469,000 gallons per minute 
are drawn through the intakes to a 19-foot (5.8 m) diameter, 3-mile 
long (4.8 km) tunnel beneath the seafloor and into large holding bays 
(called forebays) at the power plant. Lethal takes of harbor seals 
(Phoca vitulina), gray seals (Halichoerus grypus), harp seals (Phoca 
groenlandica), and hooded seals (Cystophora cristata) are known to have 
occurred and are expected to continue to occur as the animals enter the 
cooling water intake structures and apparently drown enroute to the 
forebays.
    Each of the three seawater intake structures consists of a velocity 
cap that is connected to the subterranean intake tunnel by vertical 
risers. The velocity intake caps are 30 feet (9.1 m) in diameter and 
rest, mushroom-like, on top of 9-foot (2.7 m) diameter risers that 
vertically descend 110 feet (33.5 m) to connect with the horizontal 
intake tunnel. The bottom of the horizontal intake cap opening is 10 
feet (3.05 m) above the ocean bottom, and the intake openings are 
covered by vertical bars that are spaced 16 in. (40.6 cm) apart. The 
intent of the vertical bars is to reduce the amount of large debris 
that can enter the intake. The purpose of the

[[Page 28115]]

cooling water intake design is to minimize the rate of water flow at 
the entrance to the intakes and thereby minimize the entrainment of 
marine organisms. The rate of water flow at the edge of the velocity 
intake caps during normal, continuous power operations is about 0.5 
feet per second (0.15 m/sec; 0.3 knots).
    Because the structures are offshore and submerged, seals have not 
been observed entering the intakes, but they are discovered in the 
forebays of the station. It is not believed that the horizontal flow 
rate at the entrance to the intakes is strong enough to sweep seals 
into the intakes. The animals may swim into the structures in pursuit 
of prey or by curiosity. Once inside the velocity cap, the rate of 
water flow increases in the risers and intake tunnel. The accelerating, 
downward turning flow and the low-light conditions may disorient the 
seals and may inhibit their escape from the intakes. For an object 
traveling passively with the water flow, the minimum transit time from 
the offshore intake velocity cap to the forebay is approximately 80 
minutes. A seal that enters the intakes and is unable to find its way 
out would not be able to survive the transit through the intake tunnel 
to the plant.
    Though Seabrook Station has been in commercial operation since 
August 1990, no seal takes were known to have occurred prior to 1993 
when the remains of two seals were discovered. In 1994, the remains of 
seven seals were found and, in 1995, the remains of six to seven were 
found. In 1996, 12 to 17 animals were taken and, in 1997, 10 seals were 
taken at the facility. Lethal takes for 1998 totaled 13 seals. Given 
that the local abundance of harbor seals is known to be increasing and 
that plant operations are scheduled to continue, as yet unmodified, 
takes are likely to continue to occur in the coming years. The expected 
number of takes cannot be estimated at this point, but an examination 
of past years' takes may illustrate a trend for upcoming years.

Description of the Habitat and Marine Mammals Affected by the 
Activity

    A description of the U.S. Atlantic coast environment, including 
marine mammal abundance, distribution, and habitat can be found in the 
EA on this rule. Additional information on Atlantic coast marine 
mammals can be found in Waring et al. (1998). These documents are 
available upon request (see ADDRESSES).

Summary of Potential Impacts

    From the initial report of a take in 1993 through 1998, the remains 
of 50 to 56 seals have been discovered in Seabrook Station's forebays 
or on the devices used to clean the forebays' condenser intake screens. 
Human access to the forebays is restricted and visibility is poor. 
Consequently, intact animals occasionally go undetected in the forebay, 
and pieces of hide and bones are recovered in the screen washings as 
the animals decompose, causing uncertainty in the total number of 
animals taken to date. The remains are turned over to authorized 
members of the Northeast Marine Mammal Stranding Network for analysis 
and disposal. Through 1998, the remains of four gray seals, and skull 
fragments of two harp seals and of one hooded seal have been 
identified. Thirty-seven of the seals have been positively identified 
as harbor seals. For the harbor seals whose ages could be determined, 
the majority have been young-of-the-year. Where possible, examination 
has shown that 11 of the seals were males and 16 were females. To 
summarize, 44 of the seals taken have been identified to species and 27 
have been identified to sex.
    The regulations limit the annual incidental take for the operation 
of Seabrook Station to 20 harbor seals and four of any combination of 
gray, harp and hooded seals. Harbor seals have constituted the majority 
of animals taken; consequently, that species has been allocated a 
separate annual authorization. These limits are considered very 
conservative because they are well within the Potential Biological 
Removal (PBR) level for those species whose PBR levels have been 
calculated. The PBR level for the western North Atlantic harbor seals 
is 1,859 and the minimum population estimate is 30,990. The gray seal's 
regional population is not as large as that of the harbor seal. The PBR 
level is 122 and has a minimum population estimate of 2,010 in U.S. 
waters. Harp and hooded seals do not have a calculated PBR level 
because the minimum population in U.S. waters is unknown. While there 
is no PBR level calculated for the harp or hooded seals, the minimum 
population estimates for these species are 4.8 million and 400,000, 
respectively.

Mitigation

    North Atlantic is presently investigating a number of measures to 
prevent or reduce the lethal taking of seals at Seabrook Station. To 
date, no preventative measures have been implemented, but some 
alternatives seem to warrant further study. Designs of a physical 
barrier system and an acoustical deterrence array are still being 
evaluated. These alternatives are being reviewed for practicability 
with regard to nuclear power safety, costs, and ability to withstand 
the high energy offshore environment.
    It should be recognized that, due to inherent difficulties in 
designing, constructing, and maintaining a structure or device in the 
offshore high energy environment of the intakes, only a reliable and 
durable mitigation system is feasible. Any chosen mitigation measure 
must also be economically and technologically feasible as a means to 
effect ``the least practicable adverse impact'' on the described 
pinniped species. To ensure that any mitigation method that may be 
employed is feasible, NMFS is allowing North Atlantic to use this 
authorization period to fully explore any feasible mitigation methods. 
If a method or combination of methods is found to be feasible, it must 
also be tested, constructed, deployed, and be operational during the 
defined schedule that occurs within the 5-year authorization.
    If, after North Atlantic conducts the appropriate feasibility 
studies, it is determined that no mitigation measure is proven to be 
feasible due to technological, economic, or safety reasons, then at the 
next renewal of the authorization, NMFS and North Atlantic must further 
explore and undertake steps to promote the conservation of the 
population of Gulf of Maine seals as a whole. These measures may take 
the form of studies that examine population trends, migration patterns, 
or enhancement of the survival of young-of-the-year seals.

Monitoring

    This final rule requires North Atlantic personnel to continue their 
efforts to monitor the station for the presence of entrapped seals. 
Timely awareness of a take allows for a more comprehensive evaluation 
on the level of takes and on the characteristics of each seal. Seals 
that go undetected in the intake circulating system may decompose and 
be missed during examination of screen wash debris.
    Monitoring under the final rule must include: (1) twice daily 
visual inspection of the circulating water and service water forebays, 
(2) daily inspections of the intake transition structure from April 1 
through December 1, unless weather conditions prevent safe access to 
the structure, (3) screen washings once per day during the peak months 
of seal takes and twice a week during non-peak months of seal takes, 
and (4) examination of the screen wash debris to determine if any seal 
remains are present.

[[Page 28116]]

Reporting Requirements

    Seal takes must be reported to NMFS through both oral and written 
notification. NMFS must be notified via telephone by the close of 
business on the next day following the discovery of any marine mammal 
or marine mammal parts. Written notification to NMFS must be made 
within 30 days. The written notification must also contain the results 
of any examinations conducted by qualified members of the Marine Mammal 
Stranding Network as well as any other information relating to the 
take.

Comments and Responses

    On August 25, 1998, NMFS published a proposed rule for this action 
in the Federal Register (63 FR 45213). During the 45-day comment 
period, NMFS received comments from a number of organizations. The 
comments received are addressed here.

Compliance with the MMPA

    Comment 1: In Seabrook's application, it states that no takes of 
gray seals have occurred. Takes of this species have occurred at the 
station, and this fact should be corrected in an amendment to the 
application.
    Response: At the time that the application was submitted by North 
Atlantic, no takes of gray seals had yet been reported. However, the 
application did request an exemption for takes of gray seals due to the 
potential for takes, and the proposed rule also described an 
authorization for this species. Therefore, no amendment is necessary.
    Comment 2: Mitigation measures should be attempted prior to any 
exemption being issued.
    Response: Incidental taking of seals due to this activity requires 
an authorization under the MMPA. An authorization under the MMPA is 
required by the applicant to continue taking these seals incidental to 
its activity. If the issuance of an authorization is delayed, the 
applicant could continue to be in violation of the take prohibitions of 
the MMPA. As part of this rulemaking, North Atlantic will have to 
investigate mitigation alternatives. Morever, the MMPA does not require 
as a condition of granting incidental take authorizations, that 
mitigation measures be in place before the granting of the 
authorization.
    Comment 3: Plant officials should be held accountable for the 
deaths of all seals that are taken prior to any authorization being 
issued.
    Response: The taking of marine mammals is prohibited under the MMPA 
unless exempted by the MMPA or authorized by permit. While seal takes 
at Seabrook Station in the past constitute a violation of the MMPA, 
NOAA has discretion on whether to enforce the provisions of the MMPA. 
Because North Atlantic has fully cooperated with NMFS by preparing an 
application for a small take exemption and has promptly notified NMFS 
of each take, NOAA has determined that no benefit would be gained by 
issuing notices of violation at this time.
    Comment 4: The proposed rule is against the spirit of the MMPA 
because it justifies the killing of four species of seals by assuming 
that the hardiest seal species is doing fine and that harbor seals best 
lend themselves to evaluating future trends in the regional seal 
population. The proposed rule does not reflect this conclusion nor 
reflect the fact that marine mammal populations fluctuate and can not 
be predicted with certainty.
    Response: Section 101(a)(5)(A) of the MMPA directs NMFS to allow, 
upon request, the incidental taking, including lethal taking, of marine 
mammals by U.S. citizens who engage in an otherwise lawful activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are met and regulations issued. One of these 
findings is that the taking must have no more than a negligible impact 
upon the species in question. While marine mammal populations may 
fluctuate, harbor seal surveys have been conducted in this region since 
1981. Since that date, the estimated average population increase was 
4.2 percent for harbor seals. In addition, the Western North Atlantic 
populations of gray, harp, and hooded seals appear to be increasing 
(Waring et al., 1998). While the exact numbers of a particular marine 
mammal population may be difficult to identify, NMFS is able to 
determine relative trends for these particular species in U.S. waters. 
However, based upon comments received, the final rule has been revised 
and will have an authorized annual take limit of twenty harbor seals 
and four of any combination of gray, harp, and hooded seals.
    Comment 5: If optimum sustainable population (OSP) has not been 
determined for some of the species, no authorization can be issued 
under the MMPA. Since there is no PBR level established for harp and 
hooded seals, the OSP cannot be determined. Therefore, the negligible 
impact can not be determined. As in Kokechik Fisherman's Association v. 
Secretary of Commerce, the proposed rule violates the MMPA.
    Response: NMFS had determined that the Kokechik case does not bar 
issuance of a section 101(a)(5)(A) authorization in this case. Takings 
under section 101(a)(5)(A) of the MMPA, which authorizes the taking of 
small numbers of marine mammals by activities other than commercial 
fishing, are allowed if certain conditions are satisfied and the taking 
is having no more than a negligible inpact. Since these activities are 
having no more than a negligible impact on species and stocks, they are 
clearly exempt from the requirements of sections 103 and 104 with 
respect to making OSP determinations for each affected stock prior to 
any take authorization (section 101(a)(5)(C)(ii)).
    As described in detail in the joint NMFS/U.S. Fish and Wildlife 
Service 1989 final rulemaking implementing the 1988 MMPA Amendments to 
the small take authorization section (see 54 FR 40338, September 29, 
1989), a formal OSP determination is not required to make a negligible 
impact determination. Instead, as in this case, NMFS can make 
judgements on a case by case basis on how the anticipated incidental 
taking will affect the status and population trends of the species or 
stocks concerned.
    Comment 6: In addressing the level of impacts, the MMPA and Clean 
Water Act (CWA), section 316(b), are in conflict. The standards under 
the MMPA are in conflict with the CWA when examining the technology 
available and the requirements for utilizing what is considered 
appropriate technology under both the MMPA and the CWA. Accordingly, in 
reconciling these two statutory schemes, the emphasis should be on the 
greatest level of protection possible. The Environmental Protection 
Agency (EPA) and NMFS should also engage in active consultation and 
coordination on this matter to ensure that NMFS and EPA exercise their 
respective authorities in a coordinated fashion.
    Response: NMFS has been discussing, and will continue to discuss, 
this action with the EPA with respect to the MMPA and EPA's authority 
under the CWA. Nothing in this MMPA rulemaking prohibits the EPA from 
taking any other independent action under its authorities under the 
CWA. This regulation applies only to NMFS and its authority to issue 
regulations under the MMPA.
    Comment 7: Why was 5 years chosen as the maximum duration of the 
authorization when a duration of lesser time could have been selected?
    Response: Since Seabrook will likely remain in operation until at 
least 2026, North Atlantic could conceivably require a number of 
authorizations

[[Page 28117]]

under the MMPA. By choosing 5 years as the duration of the 
authorization, NMFS is attempting to take a farsighted approach to any 
regulatory requirements. Also, during this initial authorization 
period, North Atlantic will be undertaking a number of steps to attempt 
to mitigate the seal takes, and this process may require the majority 
of this initial authorization period. However, the Letter of 
Authorization (LOA) must be renewed annually and if North Atlantic is 
not complying with the conditions of the LOA, or, if other information 
becomes available about the level of impact of the taking of seals, 
then NMFS may revoke the authorization.

Marine Mammal Concerns

    Comment 8: From the information presented by NMFS, it appears that 
the taking that would be authorized over the 5-year period would have a 
negligible impact on the affected populations.
    Response: NMFS concurs with this assessment.
    Comment 9: Species accounts in the draft EA and the application 
should be corrected to match the most recent stock assessments.
    Response: The final EA will contain the information from the most 
recent NMFS marine mammal stock assessments. However, the application 
does not need to be corrected because it used the stock assessment 
information that was most current at the time of its submission.
    Comment 10: The draft EA has no discussion of other sources of 
mortality to these marine mammal species such as mortality related to 
fishery interactions.
    Response: The final EA contains information on other sources of 
mortality, such as mortality from commercial fishery interactions.
    Comment 11: Any takes of harp seals when combined with the total 
allowable catch in Canada and the directed fishery in Greenland 
approaches or exceeds what would be the PBR level when calculated using 
the United States PBR level formula.
    Response: For a take of a species to be authorized under this 
process, the incidental take of that species must have no more than a 
negligible impact on the species or stock of marine mammal. NMFS has 
defined ``negligible impact'' in 50 CFR 216.103 as ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' To date, there have been two reported takes of harp seals 
at Seabrook Station (one in 1995 and one in 1997). NMFS stated in its 
1998 Stock Assessment Report that harp seals are primarily a Canadian 
stock with an estimated minimum population of 4.8 million. This final 
rule establishes a maximum take of four harp seal per year if no takes 
of gray or hooded seals occur. Therefore, incidental takes of harp 
seals by North Atlantic have, and will continue to have, no more than a 
negligible impact.
    Comment 12: Given that no PBR level exists for harp and hooded 
seals, should North Atlantic be required to initiate a population study 
of these species in order to determine whether its operation will 
really have a negligible impact?
    Response: Although there are no established PBR levels for harp and 
hooded seals, there is sufficient information for these species that 
allows for an estimate of their population sizes and trends in 
abundance. Both stocks indicate an increasing population size in U.S. 
waters. Considering these increasing U.S. and Western North Atlantic 
stock sizes, and given that the location of the major portion of harp 
and hooded seal populations is in Canadian waters, population studies 
of these species is unnecessary. For this rulemaking, NMFS considered 
the best scientific information available relative to pinniped 
populations, in addition, there is no actual requirement in the MMPA 
for the applicant to fund or conduct additional research.
    Comment 13: A proposed annual authorization of 34 seals seems 
unnecessarily high, given the annual takes in previous years.
    Response: A conservative number was proposed as the limit for 
authorized annual takes to ensure, in part, that North Atlantic would 
have the ability to pursue mitigation options without the risk of 
reaching their annual authorization limit and thereby invalidating 
their authorization under the MMPA for the remainder of the year. 
However, due to the more stable incidental take levels that occurred in 
1997 (10 seals) and 1998 (13 seals) and based upon comments received, 
the final rule lowers the annual take authorization to 20 harbor seals 
and 4 of any combination of gray, harp, and hooded seals. Lowering the 
annual authorization to 24 seals from the previous limit of 
approximately 34 animals more closely parallels the current observed 
trends in takes.
    Comment 14: Could the rule employ a graduated take limit that 
increases over the length of the authorization to account for range 
expansion and population increases?
    Response: While the comment has merit, an increasing quota is 
unnecessary (see response to comment 13). The maximum length of time 
for the small take authorization under the MMPA to North Atlantic is 5 
years. At the time of any future rulemaking for reauthorization of an 
exemption under the MMPA, revised conservative take limits may be set 
that would reflect recent knowledge of the respective pinniped 
populations and the takes documented during the authorization. Any 
revised take limit would also reflect the utilization of any mitigation 
measures that are in effect at the intake cooling water structures.
    Comment 15: Is the annual authorized take allowed to increase with 
increasing PBR level?
    Response: As mentioned previously, based upon comments received, 
the final rule uses a different method of establishing the total annual 
authorized takes than that originally proposed. For each year of this 
authorization, a maximum of 20 harbor seals may be taken as well as a 
maximum of 4 of any combination of gray, harp, and hooded seals per 
year. Those levels are not proposed to increase during this 5-year 
authorization. Depending upon the success of implemented mitigation, 
future authorizations may propose increased or decreased levels of take 
whether or not individual PBRs increase.
    Comment 16: The draft EA erroneously states that the New Hampshire 
coastal area is not in the primary range of the gray seal.
    Response: The New Hampshire coastal region is not a known breeding 
or pupping area for the gray seal. While colonies do exist in the 
Nantucket area, the New Hampshire coastal area is at the edge of the 
range for the species and is not considered a concentration area for 
gray seals.

Mitigation Concerns

    Comment 17: Further testing and design of barriers should be 
undertaken, and this should be a condition of any temporarily granted 
small take authorization.
    Response: If a mitigation measure such as barriers is determined, 
by NMFS, to be feasible with respect to such factors as nuclear power 
safety, available technology, economics, and the ability of the measure 
to withstand the high energy offshore environment, a pilot program must 
be implemented to test any alternative that is chosen as a mitigation 
design. Any testing of a mitigation alternative will take place after 
an authorization is initially issued.
    Comment 18: The use of Acoustic Harassment Devices (AHDs) is 
opposed as a deterrence option at Seabrook Station. They displace 
cetaceans as

[[Page 28118]]

demonstrated in the Olesiuk et al. (1995) paper relating to harbor 
porpoise in British Colombia. Harbor porpoise were displaced up to 3.5 
kilometers from the source of the AHDs.
    Response: The evidence being presented that AHDs displace 
cetaceans, specifically harbor porpoise, is based only on the single 
cited study which was conducted in a very different physical 
environment from that which occurs at Seabrook Station. Around 
aquaculture facilities in Maine, harbor porpoise have been observed 
among pens with active AHDs. Therefore, it is unknown whether or not 
AHDs would displace harbor porpoise in this case. In determining 
whether AHDs are practicable mitigation measures NMFS will consider all 
of the pros and cons of such devices and their impact on pinnipeds and 
other marine mammals.
    Comment 19: The use of AHDs as a deterrent option would likely 
constitute a form of intentional taking not allowed under Section 
101(a)(5)(A) of the MMPA.
    Response: Section 101(a)(5)(A) requires NMFS to implement 
``regulations setting forth * * * permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practicable adverse impact on such species or stock and its habitat * * 
*.'' Therefore, when mitigation measures have been identified to lower 
the potential for marine mammals to be seriously injured or killed, 
those measures, including intentional harassment measures would need to 
be authorized under the appropriate provision of the MMPA.
    Comment 20: Why is NMFS allowing a delay in implementing possible 
mitigation measures after it has received the required report of 
possible mitigation measures?
    Response: The delay is necessary to allow the applicant the time 
necessary to conduct a pilot study at the site of the intakes as well 
as to possibly install a more permanent mitigation measure following 
that study. The applicant could implement measures in a shorter period 
of time than was determined to be feasible.
    Comment 21: Commenters were concerned over the time period for 
implementation of a chosen mitigation alternative once a method was 
determined feasible. Comments suggested that flexibility be given to 
North Atlantic to take advantage of outages (periods when the intakes 
are shut down) when, implementing alternatives, both before and after 
the 42-month period.
    Response: NMFS has determined that the 42 months is a practicable 
and reasonable requirement for have North Atlantic to implement its 
mitigation measures. If an outage is required to complete any necessary 
installation, then North Atlantic will have to utilize an outage period 
prior to the 42-month period. Moreover, North Atlantic is free to use 
any outage before the end of the 42-month period to implement 
mitigation measures.

Monitoring Concerns

    Comment 22: The increased visual inspections of the forebays are 
identifying seals in the forebay before they significantly decompose.
    Response: NMFS agrees that the increased visual inspections are 
identifying seals more frequently than in the past. However, seal 
remains are still being recovered in the screen wash assessments, so 
the visual inspections are not completely effective in discovering 
seals.
    Comment 23: North Atlantic has been using high powered searchlights 
to inspect the forebays for the past year which has made the visibility 
adequate to identify seal carcasses during the twice-daily visual 
inspections.
    Response: The use of searchlights may contribute to an increase in 
the ability of inspectors to observe any animals in the forebay. 
However, occasionally water conditions prevent observation of seals 
beneath the surface of the water, regardless of the tools currently 
being used by inspectors.
    Comment 24: In the unlikely event that a seal is not observed 
visually and decomposes, any seal fragments will be noticed during the 
screen wash assessment.
    Response: While seal remains are observed during screen wash 
assessments that were not previously visually observed, there is no 
conclusive proof that current methods of inspection are able to observe 
all seals taken. However, the majority of seals are likely discovered 
under current practices.
    Comment 25: In months in which seal mortality has been the 
greatest, screen cleanings (in the forebays) should occur twice a day 
rather than twice a week.
    Response: NMFS agrees in part. At present, North Atlantic conducts 
twice-a-week screen washings, as well as visual inspections of both 
forebays at least twice per day. However, given that seals are being 
occassionally missed by visual inspections of the forebays, requiring 
one screen washing per day during the peak months of seal takes is 
considered by NMFS to be adequate to better monitor and record seal 
takes. During non-peak months of seal takes, screen washings will be 
required twice a week.
    Comment 26: The requirement for the frequency of inspection of the 
intake transition structure should be changed to two inspections per 
week between June 1 and October 31 of each year as opposed to the 
proposed rule requirement for year-round daily inspections.
    Response: To make the monitoring more effective, the requirement 
for the inspection of the intake transition structure is changed from 
the proposed rule to daily inspections from April 1 through December 1 
of each year unless weather conditions prevent safe access to the 
structure.
    Comment 27: The personnel inspecting the intake circulating water 
system and screen wash debris should be determined to be qualified, 
based on their having a sufficient knowledge of pinniped 
identification, rather than by a determination of the NMFS Regional 
Administrator to approve inspecting personnel.
    Response: The final rule reflects this comment by allowing North 
Atlantic to designate inspection personnel based on a determination 
that they have the ability to accurately identify pinniped and marine 
mammal individuals and marine mammal parts that occur as a result of 
the inspections and assessments.
    Comment 28: Is the nearfield monitoring (as described in Seabrook's 
application) sufficient to document migration, habitat use, and 
foraging behavior of the species? Would this monitoring be required 
only if it is determined that no mitigation measure is feasible?
    Response: Monitoring sufficient to documenting habitat and foraging 
behavior is not necessary for this authorization. However, as was 
stated in the proposed rule, if no mitigation is found to be feasible, 
then studies that explore components of pinniped ecology in the region 
may be required. Therefore, at the present time, the studies that North 
Atlantic currently undertakes for nearfield monitoring of seals are 
considered sufficient.

Reporting Concerns

    Comment 29: In the report that North Atlantic will have to submit 
describing potential mitigation measures, North Atlantic should also be 
required to fully describe those measures that it had previously 
considered, but determined would not be feasible.
    Response: NMFS concurs and the final rule includes this change.
    Comment 30: Oral reports made upon the discovery of a seal or seal 
parts should be allowed to be made by the close of business on the next 
day

[[Page 28119]]

following the finding of any seals or seal parts or other marine mammal 
parts.
    Response: NMFS concurs and has modified the rule accordingly.
    Comment 31: A request was made to change the requirement for the 
submission of any necropsy reports to NMFS from 15 business days to 30 
days to better accommodate the staff from the New England Aquarium who 
perform the examinations.
    Response: NMFS concurs and has modified the rule accordingly.

Changes From the Proposed Rule

    NMFS has modified the final rule as follows:
    1. The annual authorized take in Sec. 216.130(b) is limited to a 
maximum of 20 harbor seals and four of any combination of gray, harp, 
and hooded seals. These numbers more closely parallel observed takes in 
recent years but still provide the applicant a conservative limit with 
which to pursue a mitigation alternative.
    2. The effective dates of the rule stated in Sec. 216.131 is 
effective from July 1, 1999, through June 30, 2004.
    3. The report required by Sec. 216.134 to be submitted within 6 
months from the issuance of the final rule must include a full 
description of any mitigation measures that were previously considered, 
but determined not to be feasible. This will allow NMFS to conduct a 
more thorough review of any mitigation alternatives prior to any 
implementation of a measure at the intakes.
    4. The date Sec. 216.134 requires for any chosen mitigation measure 
to be implemented by is no later than 42 months after the date of 
issuance of the final rule. The elimination of the option to have any 
chosen mitigation alternative implemented by 42 months or at the 
closest scheduled plant outage before or after that date will allow the 
applicant sufficient time to study and implement a mitigation 
alternative yet establishes a definitive deadline for work to be 
completed.
    5. Section 216.135(b) requires that personnel performing 
inspections have sufficient knowledge of pinniped identification to 
discover seal or seal parts during the required inspections and 
assessments. This removes the burden of the NMFS Regional Administrator 
to review each individual who is assigned inspection duties by North 
Atlantic.
    6. Section 216.135(d) requires that the intake transition structure 
be inspected daily from April 1 through December 1 unless weather 
conditions prevent safe access to the structure. NMFS believes that 
given the weather conditions at the intake transition structure and the 
periodic nature of the majority of seal takes, there would be no added 
benefit gained from year-round daily inspections.
    7. Section 216.135(e) requires one screen washing per day during 
the peak months of seal takes as specified in the LOA. During non-peak 
months of seal takes, screen washings are required twice a week. 
Increasing the frequency of screen washings during the peak months of 
seal takes may allow for a greater opportunity to observe any seals 
that have been transported to the forebays that were not otherwise 
observed visually during the regular forebay inspections.
    8. Section 216.135(f) requires oral notification to NMFS to occur 
within one business day following the discovery of any seal or seal 
parts, or other marine mammal or marine mammal parts. This change 
provides prompt notification to NMFS of any seal takes but accounts for 
the work schedule of NMFS personnel who receive the reports.
    9. Section 216.135(h) requires that NMFS receives written 
notification of the discovery of any seal or seal parts, or other 
marine mammal or marine mammal part, within 30 days from the time. This 
change will allow the staff at the New England Aquarium more time to 
conduct the required necropsies and examinations of any seal carcasses 
recovered.

Conclusions

    Based upon the information contained in North Atlantic's 
application, in the EA prepared for this action, and in this document, 
NMFS has determined that the taking of up to 20 harbor seals and four 
of any combination of gray, harp, and hooded seals, annually during the 
next five years, would have no more than a negligible impact (as 
defined in Sec. 216.3) on these stocks of marine mammals. The best 
scientific information available indicates that the harbor seal stocks 
are increasing at about 4.2 percent annually. In addition, the Western 
North Atlantic populations of gray, harp, and hooded seal stocks also 
appear to be increasing in abundance (Waring et al., 1998). The small 
number of takes by Seabrook is unlikely to reduce the rate of 
reproduction of these animals.

National Environmental Policy Act

    In conjunction with the notice of proposed authorization, NMFS 
released a draft EA that addressed the impacts on the human environment 
from issuance of the authorization and the alternatives to the proposed 
action. Comments received on the draft EA during the comment period 
have been addressed in this document. As a result of the findings made 
in the revised EA, NMFS has concluded that implementation of either the 
preferred alternative or other identified alternatives would not have a 
significant impact on the human environment. As a result of that 
finding, an Environmental Impact Statement will not be prepared. A copy 
of the EA is available upon request (see ADDRESSES).

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration when this rule was proposed, that, if 
adopted, it would not have a significant economic impact on a 
substantial number of small entities in the meaning of the Regulatory 
Flexibility Act. No comments were received on the certification and the 
basis for it has not changed. Accordingly, a regulatory flexibility 
analysis was not prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number.
    This rule contains collection-of-information requirements subject 
to the provisions of the PRA and which has been approved by the OMB 
under control number 0648-0151. This is the requirement for an annual 
report. Requirements for reporting on seals and seal parts found, and 
on mitigation measures taken are not subject to the PRA since they 
apply only to a single respondent and are not in a rule of general 
applicability.
    The reporting burden for this collection is estimated to be 
approximately 80 hours, including the time for gathering and 
maintaining the data needed and for completing and reviewing the 
collection of information. Send comments regarding these reporting 
burden estimates or any other aspect of the collections of information, 
including suggestions for reducing the burdens, to NMFS and OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties,

[[Page 28120]]

Reporting and recording requirements, Seafood, Transportation.

    Dated: May 18, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. In Sec. 216.3 a new definition for ``Administrator, Northeast 
Region'' is added in alphabetical order to read as follows:


Sec. 216.3  Definitions.

* * * * *
    Administrator, Northeast Region means Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298
* * * * *
    3. Subpart L is added to read as follows:

Subpart L--Taking of Marine Mammals Incidental to Power Plant 
Operations

    Sec.

216.130  Specified activity, specified geographical region, and 
incidental take levels.
216.131  Effective dates.
216.132  Permissible methods of taking.
216.133  Prohibitions.
216.134  Mitigation requirements.
216.135  Monitoring and reporting.
216.136  Renewal of the Letter of Authorization.
216.137  Modifications to the Letter of Authorization.
216.138--216.140  [Reserved]

Subpart L--Taking of Marine Mammals Incidental to Power Plant 
Operations


Sec. 216.130  Specified activity, specified geographical region, and 
incidental take levels.

    (a) Regulations in this subpart apply only to the incidental taking 
of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), harp 
seals (Phoca groenlandica), and hooded seals (Cystophora cristata) by 
U.S. citizens engaged in power plant operations at the Seabrook Station 
nuclear power plant, Seabrook, NH.
    (b) The incidental take of harbor, gray, harp, and hooded seals 
under the activity identified in this section is limited to 20 harbor 
seals and 4 of any combination of gray, harp, and hooded seals for each 
year of the authorization.


Sec. 216.131  Effective dates.

    Regulations in this subpart are effective from July 1, 1999 through 
June 30, 2004.


Sec. 216.132  Permissible methods of taking.

    Under a Letter of Authorization issued to North Atlantic Energy 
Services Corporation for Seabrook Station, the North Atlantic Energy 
Services Corporation may incidentally, but not intentionally, take 
marine mammals specified in Sec. 216.130 in the course of operating the 
station's intake cooling water system.


Sec. 216.133  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.130(a) and by the 
Letter of Authorization, issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of harbor seals, gray seals, harp seals, and hooded 
seals that is other than incidental.
    (b) The taking of any marine mammal not authorized in this 
applicable subpart or by any other law or regulation.
    (c) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec. 216.106.


Sec. 216.134  Mitigation requirements.

    The holder of the Letter of Authorization is required to report, 
within 6 months from the issuance of a final rule, to the 
Administrator, Northeast Region, NMFS, on possible mitigation measures 
effecting the least practicable adverse impact on the seals specified 
in Sec. 216.130. The report shall also include a recommendation of 
which measures, if any, the holder could feasibly implement. A 
description of any mitigation measures that Seabrook Station has 
considered, but determined would not be feasible, must be included as 
well. After submission of such report, NMFS shall determine whether the 
holder of the Letter of Authorization must implement measures to effect 
the least practicable adverse impact on the seals. If NMFS determines 
that such measures must be implemented then NMFS shall specify, after 
consultation with the holder of the Letter of Authorization, the 
schedule and other conditions for implementation of the measures. 
Implementation of such measures must be completed no later than 42 
months after the date of issuance of the final rule. Failure of the 
holder of the Letter of Authorization to implement such measures in 
accordance with the NMFS specifications may be grounds to invalidate 
the Letter of Authorization.


Sec. 216.135  Monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with NMFS and any other Federal, state, or local agency 
monitoring the impacts of the activity on harbor, gray, harp, or hooded 
seals.
    (b) The holder of the Letter of Authorization must designate a 
qualified individual or individuals capable of identifying any seal or 
seal parts or marine mammal or marine mammal parts, that occur in the 
intake circulating system, including the intake transition structure, 
both forebays, and any marine mammal or marine mammal parts observed as 
a result of screen washings conducted.
    (c) The holder of the Letter of Authorization must conduct at least 
two daily visual inspections of the circulating water and service water 
forebays during the period specified in the Letter of Authorization.
    (d) The holder of the Letter of Authorization must conduct at least 
daily inspections of the intake transition structure from April 1 
through December, unless weather conditions prevent safe access to the 
structure.
    (e) The holder of the Letter of Authorization must conduct screen 
washings at least daily during the months of higher incidents of 
observed takes and this period will be specified in the Letter of 
Authorization. During the months not specified in the LOA, screen 
washings will be conducted twice a week. Examination of the debris must 
be conducted to determine if any seal remains are present.
    (f) The holder of the Letter of Authorization must report orally to 
the Northeast Regional Administrator, NMFS, by telephone or other 
acceptable means, any marine mammals or marine mammal parts found in 
the locations specified in Sec. 216.135(b) through (e). Such oral 
reports must be made by the close of the next business day following 
the finding of any marine mammal or marine mammal parts.
    (g) The holder of the Letter of Authorization must arrange to have 
a necropsy examination performed by qualified individuals on any marine 
mammal or marine mammal parts recovered through monitoring as specified 
under Sec. 216.135(b) through (e).
    (h) The holder of the Letter of Authorization must also provide 
written notification to the Administrator, Northeast Region, NMFS, of 
such marine mammal or marine mammal parts found within 30 days from the 
time of the discovery. This report must

[[Page 28121]]

contain the results of any examinations or necropsies of the marine 
mammals in addition to any other information relating to the 
circumstances of the take.
    (i) An annual report, identifying mitigation measures implemented 
to effect the least practicable adverse impact on the seals and/or are 
being considered for implementation pursuant to the requirements 
specified at Sec. 216.134, must be submitted to the Administrator, 
Northeast Region, NMFS, within 30 days prior to the expiration date of 
the issuance of the Letter of Authorization.


Sec. 216.136  Renewal of the Letter of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.130(a) may be renewed annually provided 
the following conditions and requirements are satisfied:
    (1) Timely receipt of the reports required under Sec. 216.135, 
which have been reviewed by the Administrator, Northeast Region, NMFS, 
and determined to be acceptable;
    (2) A determination that the maximum incidental take authorizations 
in Sec. 216.130(b) will not be exceeded; and
    (3) A determination that research on mitigation measures required 
under Sec. 216.134(a) and the Letter of Authorization have been 
undertaken.
    (b) If a species' annual incidental take authorization is exceeded, 
NMFS will review the documentation submitted under Sec. 216.135, to 
determine whether or not the taking is having more than a negligible 
impact on the species or stock involved. The Letter of Authorization 
may be renewed provided a negligible impact determination is made and 
other conditions and requirements specified in Sec. 216.136(a) are 
satisfied, and provided that any modifications of the Letter of 
Authorization that may be required are done pursuant to Sec. 216.137.
    (c) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register within 30 days of issuance.


Sec. 216.137  Modifications to the Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.136, without modification, 
is not considered a substantive modification.
    (b) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in Sec. 216.130, the Letter of Authorization issued 
pursuant to this section may be substantively modified without prior 
notice and an opportunity for public comment. Notification will be 
published in the Federal Register subsequent to the action.


Secs. 216.138--216.140  [Reserved]

[FR Doc. 99-13205 Filed 5-24-99; 8:45 am]
BILLING CODE 3510-22-F